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Fact Sheet 28 Legislative Assembly Parliament of Victoria Fact Sheet 28 Sub Judice Background What is sub judice? The term sub judice means ‘before a judge or court of law’ or ‘under judicial consideration’. This fact sheet explains the restrictions on referring to current court cases in debates in the Legislative Assembly. These restrictions are known as the sub judice convention. Why is a convention needed? Members of the Legislative Assembly enjoy the parliamentary privilege of freedom of speech and are able to debate in an unrestricted manner, raising matters and issues without fear of repercussion or prosecution. It is a fundamental provision for members to enjoy this right in order for them to be able to consider any matter if it is in the public interest. They are protected from litigation or prosecution in respect of anything they state in the course of proceedings in Parliament. However, in the case of a matter awaiting or under consideration in a court of law, the Legislative Assembly imposes a restriction upon itself. The objectives of the convention were explained by Speaker Plowman in 1980: 1 · A trial should not be prejudiced by matters being discussed which might be reported in the press, and which may influence a judge and jury or others who may be considering matters before them. · Parliament should not usurp the function of the judiciary whose role it is to study facts as presented to it and make a decision under the law. The development of the convention The precedents for sub judice date back to 1844, when the Speaker of the House of Commons in the United Kingdom first ruled on the subject. Those rulings remained in place for over 100 years until a 1963 resolution of the House of Commons, when the issue was codified for the first time. 1 Hansard, vol 351, p 9373 et seq. 2 Legislative Assembly of Victoria Unless the Legislative Assembly has its own procedure, it follows the practice of the House of Commons. Over the years, Speakers of the Legislative Assembly have made a number of rulings. The role of the Speaker is summarised in the Standing Orders Committee’s 1979 report on sub judice: The Speaker…has endeavoured to achieve a reasonable balance between the conflicting considerations of the rights of the House and its members to debate a matter if it wishes to as against both the rights of litigants and the preservation of the proper judicial processes.2 The sub judice rule has been applied, for example, to matters raised in censure motions, ministerial statements, second reading debates and adjournment motions. The practical effect of the convention The following principles have developed in the Legislative Assembly: · The Speaker decides when to apply the convention. Members will usually raise the issue as a point of order that the Speaker subsequently rules on, normally at the time the debate is taking place. · The key factor is whether a reference to court proceedings could affect the course of justice. The convention does not automatically prevent a broad general reference to a court case. · Where a court case has been heard but a judgement is awaited, the convention has still been applied. · Where it is known that an appeal against a court judgement is pending, the convention has been applied. · The convention has not been applied where a court appeal was still possible but had not been made at the time of the debate. · The distinction has been drawn between matters before courts and matters more generally under investigation. For example, debate on a matter being investigated by a government department would not be sub judice. · The convention has been applied to debate on matters before judicial bodies, namely the Victorian Electoral Commission and the Conciliation and Arbitration Commission, but not to the Administrative Appeals Tribunal as it was determined to be a tribunal rather than a court of law. · Parliament is not prevented from legislating on an issue before a court. Debate can, therefore, take place on a bill that covers the same subject as court proceedings. 2 Standing Orders Committee, Report upon Sub Judice, 1979, p 4. Sub Judice 3 In addition, the House of Commons provides guidance: · With criminal matters, the convention applies from the time a charge is made to the time when the verdict and sentence have been announced. · In civil matters the convention applies from the time the case has been set down for trial or otherwise brought before the court. Civil matters may therefore be referred to before the trial date unless the Chair rules there is a real and substantial danger of prejudice to the trial of the case. Examples of the use of the convention A report of the Royal Commission into the collapse of the West Gate Bridge was the subject of debate and a subsequent censure motion. Supreme Court proceedings were pending as a result of the bridge disaster. The Speaker ruled the motion in order but restricted the scope of the debate so as to exclude those issues pending before the Court. The Speaker imposed restrictions on debate relating to the 1999 Metropolitan Ambulance Service Royal Commission to ensure that the operations of the Commission were not prejudiced. For example, members were not able to discuss any evidence before the Commission, but could debate broad issues. Further reading Standing Orders Committee, Report upon Sub Judice, PP D 8 (1979-1980). Blake, D M, The Doctrine of Sub Judice, House of Representatives — Commonwealth of Australia, The Parliamentarian Vol LXI, July 1980, pp 142–143. Erskine May, 22nd ed, Butterworths, London, 1997, pp 383–384. Issued by the Clerk of the Legislative Assembly, December 2002 4 Legislative Assembly of Victoria Fact Sheets The Legislative Assembly Procedure Office has produced a series of Fact Sheets that explain parliamentary procedure and terminology. All Fact Sheets are available on Parliament’s website www.parliament.vic.gov.au or through the Procedure Office. Contact Details Procedure Office, Legislative Assembly, Parliament House, Spring Street, East Melbourne, Vic 3002 Phone No: 03 9651 8563 Fax No: 03 9650 7245 Email: [email protected] .
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